Senior and Anderson

[2014] FamCA 142

FAMILY COURT OF AUSTRALIA

SENIOR & ANDERSON [2014] FamCA 142

FAMILY LAW – ORDERS – Enforcement – Adjournment refused – Long running litigation.

Family Law Act 1975 (Cth)

APPLICANT: Ms Senior

RESPONDENT: Mr Anderson

FILE NUMBER: MLC 9546 of 2008

DATE DELIVERED: 5 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson SC

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

THE RESPONDENT: In person

Orders

1. That within 72 hours, the husband execute a transfer of land in the wife’s favour as trustee for the sale of the property at I Street, Suburb B (being the property more particularly described in Certificate of Title Volume … Folio … (“B Property”) and otherwise do all such acts and things and sign all such documents as are required to enable the wife to have the conduct of the sale of B Property subject to the following:

   (a)G Real Estate of J Street, Suburb B be appointed as the sales agent;

   (b)The sale be by public auction to be conducted as soon as practicable unless the sales agent recommends to the wife that a different process of selling be undertaken and the wife accepts that advice;

   (c)The reserve price be not less that $850,000 unless the sales agent recommends otherwise to the wife;

   (d)The sale is to be made subject to the current monthly leasing arrangements and the wife is to first obtain the written consent and cooperation of the lessee;

   (e)The sale is to be conducted on the basis for cash contract and provide for a settlement period of no more than 120 days;

   (f)Rennick and Gaynor, Solicitors of …, are appointed as the conveyancer for the sale; and

   (g)The wife discharge the caveat over B Property at settlement of the sale.

2. The proceeds of sale of B Property be applied in the following manner:

   (a)    In payment of all agreed costs, charges and commissions of sale including legal expenses;

   (b)    In discharge of all monies and interest owing to the National Australia Bank pursuant to the registered mortgage;

   (c)    In repayment of any monies expended on the repair, renovation or maintenance of the property pending sale pursuant to these orders;

   (d)    In payment to the husband of the sum of $8000 to discharge his HECS debt to the Commonwealth government;

   (e)    In further repayment to the husband of the sum of $7500 to be paid to him to offset the wife’s superannuation entitlements; and

   (f)     The balance divided as to 60 per cent to the husband and 40 per cent to the wife subject to the husband paying from his share $256,000 (being 40 per cent of the value of the property at L Street, Suburb W) to the wife.

3. That the husband pay the wife’s costs fixed in the sum of $4000 and such sum be paid from any entitlement of the husband arising out of the sale of B Property.

4. That the application in a case of the wife filed 8 January 2014 is otherwise dismissed.

5. That the application in a case filed by the husband on 30 January 2014  is dismissed.

6. That the application in a case filed by the husband on 30 January 2013 is struck out at the request of the husband.

7. That the application in a case filed by the husband on 30 January 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Senior & Anderson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9546 of 2008

Ms Senior

Applicant

And

Mr Anderson

Respondent

REASONS FOR JUDGMENT

1. This is an application arising out of an order made by Young J on 16 July 2012.  That was a complicated order around an ultimate division of the parties’ property on a percentage basis.  Therein lies one of the problems.  There is a specific order made by his Honour that a property at I Street, Suburb B, (“Property B”) be sold.  Rightly or wrongly, the parties have never been able to reach agreement about the exchange of money and/or property and, for that reason, his Honour made, not only the order for the sale, but very concise orders about how it was to be conducted.  Fundamental to that, was an order that the auction take place on or before 1 December 2012.

2. Immediately after his Honour delivered his reasons and made those orders, there was an appeal to the Full Court.  That was followed by an application for a stay of the orders and his Honour granted that application.  The auction of B Property did not take place on or before 1 December 2012.  The matter ultimately came before the Full Court and the Full Court dismissed the husband’s appeal.  The husband then made an application for special leave and it transpires that the stay application came before me.  I have some memory of the circumstances and my understanding is that, in addition to refusing the stay, I also varied the wording of the orders of Young J on the basis that the order needed some clarification.  Both of those two issues were the subject of an appeal to the Full Court as well.

3. Almost simultaneously, the Full Court dismissed the stay application appeal and also the variation appeal and the High Court refused the husband’s special leave.  Today, in discussion, the husband said that he had not read the judgment of the High Court and that his understanding was that he had been refused because he was not represented by a lawyer.  That is certainly not my understanding of what occurred.  The High Court required the litigant in person seeking special leave to put his principal argument in writing.  The High Court made up of two judges of the seven bench then contemplated whether special leave should be granted.  In this particular case, those two judges made an order dismissing the special leave application on the ground that there was no principle involved. 

4. That long and circuitous route brings us back to the start that Young Js orders then still apply.  There is now no impediment for them to be carried out.  His Honour gave the opportunity for the parties to sort matters out and, failing agreement, then the order was to be precisely implemented, even down to the extent of how the contract was to be drawn.

5. The evidence that I am presented with today by the applicant wife is set out in the affidavit of her solicitor.  It has a comprehensive background – much of the same material that I have just covered.  On 23 April 2013, she wrote to the husband, effectively asking him to implement the orders of Young J and he did not respond.  She wrote again on 21 August 2013 in a similar vein and that is exhibit W1.  Again, it is asserted and not denied, that was not responded to.

6. On 7 October 2013, she wrote for a third time, wanting the implementation of the orders and did not receive a response.  She therefore filed the application on behalf of the wife on 8 January 2014, which effectively seeks an order that the husband execute a transfer in favour of the wife as trustee for the sale of the property and thereafter there be the implementation of the various orders of the Court. 

7. A variety of applications by the husband has been filed in response to that approach.  Each of them was set out in an application in a case.

8. The first of those I have earlier dealt was an application for an adjournment by the husband.  The basis of his application for the adjournment had been that he was stressed and unable to prepare his case, but I think if one ultimately looks back at the transcript of today’s discussion, it will be abundantly clear that he is a very astute man and, as he says himself, he has tertiary qualifications.  My objective analysis at the time of refusing the adjournment has born fruit by the subsequent discussion.  His application was refused.

9. The second application that he made was that I disqualify myself based upon something to do with an order that I made in 2010, setting the train in motion for the litigation.  Ultimately, and perhaps sensibly, the husband withdrew that application because he changed his mind and he said he did not want to proceed with it.  That application was therefore dismissed. 

10. His third application related to an attempt to relitigate what has now been finally determined by the High Court.  The document itself really belies what this is really all about.

11. In essence, what the husband wants to do is to keep the property and as senior counsel for the wife has indicated – and it is a public record now – his client will agree to a sale to the husband but on the basis that he pays to her a cash sum with which she agrees.  To some extent, that is a little like Russian roulette because it may be that what she seeks ultimately that way is more than what she might ultimately get on a sale, but that is not a matter in which the Court should be involved.

12. The Court has been asked to enforce its order, and whilst there is always a discretion for the Court as to whether it enforces its order, it is simply a matter of whether or not there is some basis here for me not to exercise the discretion and it is not, in my view, appropriate that I refuse the wife’s application based on the fact that he wants to negotiate and pay her out rather than go through the sale process.  If the husband wants to keep the property, he knows that he has to negotiate a settlement, as he endeavoured to do at the bar table in the courtroom.  His application therefore fails.

13. The wife’s application seeks that she be appointed as a trustee for sale. The three letters to which I have referred clearly indicate that the husband is not going to cooperate in respect to the sale and he has made it very clear that it is not appropriate that the sale should proceed. For the same reason, the wife sought an order under s 106A of the Family Law Act1975 (Cth) (“the Act”), but I understand that I have already made that order some months ago last year, so there is no reason for me to do that again, but I would point out that, to the extent that these orders require the implementation of a registrar signing documents, that order will be carried out on the basis of the wife’s solicitor simply deposing the husband’s failure to comply with any obligations that he has.

14. It is, perhaps, sad that it has come to this but I see no choice in this case other than to order that the property be sold by the wife, as trustee for sale, effectively in the terms of the application that she has filed.  I propose to make orders accordingly.

RECORDED  :  NOT TRANSCRIBED

1. I have an application now for costs arising out of these proceedings. Section 117 of the Act provides that in proceedings under this Act, in this Court, in particular, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating a departure from the principle, then it must take into account the matters set out in s 117(2A) of the Act. One of the matters in s 117(2A) relates to non-compliance with orders. It is quite clear in this case that the husband has exhausted his avenues to try and resolve the matter and the wife ultimately had little choice but to bring the application, as Mr Dixon quite properly points out, after October.

2. The evidence is that three letters had been written requesting cooperation in respect of the sale and they had not been responded to. There are justifiable circumstances in this case, therefore, to depart from the principle. Section 117(2A) of the Act requires the Court to take into account the financial circumstances of the parties. The husband says that he is not working and he has no income. The difficulty with that obviously is that I am dividing up property including property that it seems to me to be of commercial value so, to that extent, it is hard for me to find that there are financial circumstances such that costs orders should not be made.

3. Another reason that the Court must take into account is whether or not there has been compliance with Court orders.  As I have already pointed out, the three letters clearly indicate that the husband was not going to cooperate.  There are no legal aid considerations here and it is time for this case to stop.  It has been to the High Court and the High Court has rejected the whole process that the husband wants to proceed on.  It seems to me that this is a case that needs to be brought to an end.

4. The wife seeks an order for $7500.  That would clearly be above the scale.  There is really nothing extraordinary about this case.  I propose to make an overall order of $4000 and that can be paid out of the proceeds of the sale.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 February 2014.

Associate: 

Date:  14 March 2014